PAUL McCAWLEY,

Petitioner

v. CR-04-0487, CR-06-0379

NEW BEDFORD RETIREMENT BOARD and STATE BOARD OF RETIREMENT,

Respondent

DECISION ON RECONSIDERATION

Petitioner Paul McCawley appeals from (1) a decision of respondent New Bedford Retirement Board (New Bedford board) denying his request to purchase creditable service for the period of his employment at New Directions, and (2) a decision of respondent State Board of Retirement (State board) denying his request to receive a superannuation retirement pension. The Division of Administrative Law Appeals (DALA) heard the matter on August 28, 2006, and admitted sixteen exhibits as part of the record. On November 11, 2006, DALA entered a decision affirming the State board decision, thereby, in DALA's opinion, mooting the other issues raised by McCawley's appeal.

On July 18, 2007, we received a memorandum of law in support of McCawley's appeal. On October 19, 2007, we received a memorandum of law on behalf of the New Bedford board in opposition to the appeal. On January 2, 2008, we received notice that the State board would not be filing an opposition to the appeal. On January 18, 2008, we directed the parties to submit "additional briefing regarding the following matters:

Please discuss how these cases should be decided assuming arguendo that the 'two consecutive years' requirement of G. L. c. 32, § 3(6)(e) does not apply."

We initially received additional briefing only from McCawley. On June 20, 2008, we issued a decision reversing the DALA decision and remanding the case to DALA for further proceedings. On July 1, 2008, the New Bedford board moved for reconsideration. On July 14, 2008, the State board moved for reconsideration. On July 25, 2008, we received a memorandum of law from the New Bedford board in support of its motion. On August 14, 2008, we invited the State board to submit a response to our inquiry of January 18, 2008. We received that submission on September 3, 2008.

We incorporate the DALA decision by reference and adopt its Findings of Fact 1-21 as our own. Reversing our original decision in this case, we now affirm the DALA decision.

McCawley became a retirement system member in 1970 when he began service as an assistant district attorney. When he left that position in 1971, he did not withdraw his retirement contributions. Hence he became a member inactive. In or about July 1993, McCawley became Assistant City Solicitor at New Directions, a program existing under the Job Training Partnership Act. As a result of this employment, McCawley received full medical benefits, vacation and sick leave benefits, as well as all the same benefits received by other New Bedford Assistant City Solicitors. McCawley remained employed at New Directions until July 7, 1995, without ever becoming a member of the New Bedford Retirement System.

In September 2004, McCawley sought to purchase prior creditable service for his unpaid, elected membership on the New Bedford School Committee from 1964 to 1970. When the State board denied his request, McCawley sought to purchase creditable service from the New Bedford board for both his service as a school committee member and his service with New Directions. The New Bedford board accepted liability for McCawley's seven years of school committee membership, but denied his request for prior creditable service with New Directions on the ground that he was not a member of the New Bedford Retirement System and had never been eligible for membership.

In October 2004, McCawley sought a superannuation retirement pension from the State board, based on his one year of service as an assistant district attorney, his seven years of service with the New Bedford School Committee, and two years of military service with the United States Navy. The State board denied McCawley's request.

Even assuming in McCawley's favor that he is entitled to creditable service for his employment at New Directions, if he is subject to G. L. c. 32, § 3(6)(e), which precludes a reinstated or reentering active member from being eligible for a superannuation retirement allowance "unless and until [the applicant] has been in active service for at least two consecutive years," then his claim must fail because McCawley was employed at New Directions for fewer than two consecutive years. Holding that this statute did not apply, we reversed the DALA decision. That ruling, however, relied on McCawley's (then unrebutted) representation that McCawley "was a member of the Bristol County Retirement System prior to the enactment" of this provision. 1 With the benefit of additional submissions from the State board and the New Bedford board, however, we now realize that the governing language antedates McCawley's membership. 2

For these reasons and the reasons stated in the DALA decision, the DALA decision is affirmed.